Disputed causation leaves claimants paying the price
News And Events17/10/2017
The Keoghs fraud team recently secured findings of fundamental dishonesty in two cases for AXA where causation was disputed, with false claims for injury lodged following minor RTAs.
Case 1 – Bus charade exposed
In the first of our two cases, the driver of AXA’s insured vehicle opened his door into the side of an articulated bus.
A total of six claims were presented despite over 50 occupants having been on the bus at the time of the collision. The first of those claims to litigate was that of Miss Murray who presented a claim for a relatively minor injury.
AXA were not satisfied that anybody on the bus could have been injured, with insignificant damage to the bus suggesting it hadn’t moved in such a manner to have caused injury. However it quickly became apparent the driver of the insured vehicle was not going to assist with enquiries and attempts were made to obtain CCTV footage from the bus. These enquiries took on a new urgency when Miss Murray issued court proceedings and, on Keoghs’ instruction, a successful non-party disclosure application was made against the bus company for a copy of the CCTV footage.
The claimant made allegations supported by a statement of truth that the bus had been caused to “jolt forward rather severely” and that several other jolts had taken place whilst the driver of the bus “attempted to free the bus from the vehicle”.
The footage showed quite the contrary. At the moment of contact none of the occupants of the bus moved or jolted in any way and the only notable reaction was passengers turning to see what had taken place. In addition, the bus was not moved following the contact until all occupants had alighted.
The video evidence was then deployed alongside a defence pleading fundamental dishonesty.
The matter proceeded to trial and, on the morning of the hearing, Miss Murray decided to discontinue her claim. AXA were not satisfied with such an outcome given the false allegations and the court was asked to determine whether the claim was fundamentally dishonest.
The court found that Miss Murray’s claim was indeed dishonest, with the judge commenting;
“Having viewed the CCTV… I am entirely satisfied no plausibility to support that Ms Murray suffered neck injury” and further that “in issuing CNF after legal advice, she was seeking to exaggerate the effects of the incident, and was presenting untruths for a claim for injury which she had not suffered from, and effectively sought to defraud AXA”.
As a result Miss Murray was ordered to pay back over £9,000 to AXA and the five pre-proceedings claimants chose to no longer proceed with their claims.
Case 2 – Inconsistencies prove key to unlocking fraudulent claim
The second case involved a claimant who suggested he was stationary in his vehicle at the side of the road when AXA’s insured was alleged to have reversed his 4x4 into the car twice.
AXA’s insured accepted contact but stated it was at low speed and would not have caused any damage to the car or claimant. Nevertheless a litigated claim was presented by the claimant who alleged his vehicle had been damaged in the collision and that he had also suffered injury. Both allegations were denied by AXA’s insured.
There were a number of fraud indicators which pointed to the LSI concerns being substantiated. Inconsistencies in the various accounts given by the claimant in his medical report and statement demonstrated a clear attempt to exaggerate what was a very low speed impact.
The engineer’s report also clearly supported the insured’s account that this was nothing more than a low speed impact. A repair invoice confirming minor repair costs was only produced in the trial bundle with no proof that the alleged repairs had been undertaken.
A robust defence was filed stating these inconsistencies and putting the claimant to proof of all matters in his pleaded case including LSI related issues.
The matter proceeded to trial where, at the court door, the claimant’s barrister proposed that the matter could be settled without the need for the trial to go ahead. They requested that AXA agreed to pay the repair costs of £654.74 as final settlement of the whole claim, with the claimant effectively foregoing the injury claim, subject to both parties agreeing to bear their own costs.
Bearing in mind the weight of evidence against the claimant and the lengthy investigations undertaken by both AXA and Keoghs, a decision was made to continue to trial.
This proved correct, as a successful outcome was achieved at trial with the claimant’s claim being dismissed in its entirety and the court making a finding of fundamentally dishonest. The district judge preferred AXA’s insured’s evidence and the evidence available, finding the claimant to be neither a reliable nor honest witness.
The court was particularly detailed in its reasoning for awarding costs and removing the QOCS protection afforded to the claimant, recording the following when delivering judgment;
“QOCS is a very valuable piece of protection so far as costs are concerned, and parties should be extremely careful about not abusing the protection CPR 44.14 affords them. I have considered the notes in the Green Book in the Screwfix case from HHJ Maloney. In my judgment in view of the findings I have made, this is a case involving fundamental dishonesty. Firstly the parties accept at the time of the accident there was no damage. Both parties inspected the vehicles and went on their ways. It was only two weeks later that the report stated there was medium damage and the car was unroadworthy; no borne out by the evidence of the parties. Secondly, C’s witness statement at paragraph 12 states he went to A&E [“quotes”]. I regret to say that statement to the doctor and §12 was untrue and is a lie. He told me he went because his mother needed treatment. I find it impossible in this day and age to find a doctor would get involved. In any event the statement to a doctor was a lie and this view is confirmed by the lack of record in the GP notes. It is important people understand their claims are ground in fact, this is not a case of one witness I prefer, this regrettably is an attempt to pull the wool over the doctor’s eyes and in respect of the court”.
The claimant was ordered to pay costs in the sum of £5,696.87 to AXA.
James Heath, Counter Fraud Strategy Director was delighted with both results, saying;
“When disputing causation in any case of suspected fraud, it is vital to ensure all aspects of contemporaneous evidence are thoroughly investigated and utilised at trial. These two cases are perfect examples of the Keoghs fraud team working closely with AXA to bring spurious claims and fraudsters to book.”
Tom Wilson, Counter Fraud Manager AXA Insurance Commercial, Intermediary and Direct Lines added;
“The results on these cases are incredibly pleasing. With one case in particular it would have been the easy option to take the deals offered at the court doorstep by the claimants but when the evidential position is as good as it was, and in the interests of protecting our innocent customers, being brave and believing in the evidence fuelled the decision to proceed to trial and ensure these fraudsters were brought to justice.”